Judge: Using Lengthy News Excerpts Without Paying Is Not Fair Use

The Associated Press last week was handed a victory in its battle against Meltwater, a Norway-based news aggregator that the AP said used its content without permission.

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The Associated Press last week was handed a victory in its battle against Meltwater, a Norway-based news aggregator that the AP said used its content without permission.

Meltwater's use of AP stories does not constitute "fair use" and Meltwater cannot logically compare itself to a search engine, a New York district judge ruled on Thursday.

At issue is a daily news roundup Meltwater provides to its clients for a fee. The company uses a computer program to scrape news articles from the Web, and its roundups often consist of a headline, the news story's lede (or main, explanatory sentence), as well as other sentences that use keywords as defined by Meltwater's clients.

AP argued that Meltwater needed a license to distribute this content to its clients. Meltwater likened itself to a search engine or a service like Google News, which grabs headlines and snippets from the stories to which it links.

In her ruling, however, Judge Denise Cote found in favor of the AP. She said that Meltwater often pulled more than just a snippet of news in its roundups. Of the 33 AP articles examined in this case, Meltwater excerpted between 4.5 percent to 61 percent of the stories.

The AP is not benefiting from being included in Meltwater's news roundup. The average click-through rate is 0.08 percent, compared to an average click-through rate of 56 percent on Google News.

Comparing itself to a search engine, meanwhile, "does not correspond to how Meltwater News itself functions," Judge Cote ruled. "Meltwater News is an expensive subscription service that markets itself as a news clipping service, not as a publicly available tool to improve access to content across the Internet."

Meltwater, the judge said, is profiting from the AP's work. "Permitting Meltwater to take the fruit of AP's labor for its own profit, without compensating AP, injures AP's ability to perform this essential function of democracy."

The lede, for example, "is a sentence that takes significant journalistic skill to craft," the judge concluded.

"For years all of us have been hearing that if it is free on the Internet, it is free for the taking. That's what Meltwater argued. The judge in this case just rejected that argument," AP President and CEO Gary Pruitt said in a statement. "We won on every single argument we made in the case. We are thrilled. This is first and foremost a victory for the public and for democracy."

Meltwater has vowed to appeal. "We're disappointed by the court's decision and we strongly disagree with it," Jorn Lyseggen, CEO of Meltwater," said in a statement. "We're considering all of our options, but we look forward to having this decision reviewed by the Court of Appeals, which we are confident will see the case a different way."

Meltwater has the backing of the Electronic Frontier Foundation, which said on Thursday that Judge Cote's ruling is troubling.

"Given that the court devoted several pages of text explaining how Meltwater was like a search engine (i.e., it scans the web for news and creates an index that allows customers to search for relevant information) it is difficult for us to see why the fairness of its purpose should turn on its success at getting customers to actually click through the links it provided," the EFF said.

As PaidContent noted, meanwhile, the ruling could be insignificant since all of Meltwater's rivals already have AP licenses for content. But it might also encourage the AP to go after more services it feels are infringing on its content.

Google has fought with various publishers overseas on the "snippet" point. Most recently, German lawmakers approved a bill that allows the search giant to freely include headlines and snippets from German publishers on services like Google News. But the bill originally wanted to impose a "link tax" on all excerpted content.

Chloe Albanesius has been with PCMag.com since April 2007, most recently as Executive Editor for News and Features. Prior to that, she worked for a year covering financial IT on Wall Street for Incisive Media. From 2002 to 2005, Chloe covered technology policy for The National Journal's Technology Daily in Washington, DC. She has held internships at NBC's Meet the Press, washingtonpost.com, the Tate Gallery press office in London, Roll Call, and Congressional Quarterly. She graduated with a bachelor's degree in journalism from American University...
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